The main legal point established is that the transfer of share or interest in unpartitioned property by one co-owner is recognized under Section 44 of the Transfer of Property Act, 1872. Additionally, the duty of the court to ascertain the respective shares of all parties in a partition suit under Order XX Rule 18 of the Code of Civil Procedure was emphasized.

1. Plaintiff of Title Suit No. 14 of 1999 is the appellant in this second appeal challenging concurrent findings of the Courts below.

2. Kaliram Deka, predecessor of the present appellant as plaintiff instituted Title Suit No. 14 of 1999 in the Court of learned Civil Judge (Senior Division) at Nalbari against as many as 51 Principal Defendants and one Madan Sarma as Proforma Defendant praying for preliminary decree for partition in his favour and also for recovery of khas possession if the plaintiff is not found in possession during pendency of the suit. The case of the plaintiff is that he is in possession of 1 bigha 3 kathas 11 lechas described in Schedule- Ka of the plaint on assertion of the claim of title. He purchased this plot of land measuring 2 kathas 5 lechas of Dag No. 1096 under Kha schedule land by Registered Sale Deed No. 65/1996 on 08.01.1996 from the Proforma Defendant No. 52 (Madan Sarma). He also purchased another plot of land measuring 2 kathas 5 lechas under Dag No. 1067 and equal amount of land in Dag No. 1094 from defendants No. 39 & 40 (Jagendra Kalita and Pramod Kalita) by Registered Sale Deed No. 66 of 1996 on 08.01.1996 and subsequently thereafter on 02.03.1996 he purchased 1 katha 16 lechas of land in Dag No. 1095 from Madan Sharma, the Proforma Defendant No. 52. The plaintiff claimed to have come into possession of the purchased land immediately on purchase and was possessing the same on assertion of his bonafide right, title and interest but on 27.08.1996 defendants No. 1 to 9 attempted to dispossess the plaintiff from the suit land, however, abortively for which he approached the jurisdictional Executive Magistrate vide Case No. 188m/96 taking recourse to the provision of Section 145/146 of the Code of Criminal Procedure. Aggrieved by the order passed by Executive Magistrate, the plaintiff approached the learned trial Court and filed a suit for partition of his land on the basis of the purchase as referred to above.

3. On being summoned the defendant No. 2 appeared and by filing written statement contested the claim of the plaintiff while other defendants did not file any written statement and as such the suit proceeded ex-parte against them. The defendant No. 2 denied the case of the plaintiff in entirety and claimed to be in possession of the suit land from the days of their father. The defendant No. 2 also denied the title of the vendors of the plaintiff.

4. Upon such pleadings of the parties, the learned trial Court framed as many as 7 issues which are quoted below:

1. Whether there is cause of action for the suit?

2. Whether the suit is maintainable in its present form?

3. Whether the suit is barred by limitation?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the plaintiff has right, title and interest over the suit land?

6. Whether Madan Sarma had right, title and possession over the suit land?

7. To what relief/reliefs the parties are entitled to?

5. Plaintiff examined as many as 6 witnesses and proved documents while defendants examined 3 witnesses. Although issue No. 1, 2, 3 & 4 were decided in favour of the plaintiff but the learned trial Court by his judgment and decree dated 24.05.2001 dismissed the suit holding that the plaintiff could not prove his right, title and interest with respect to the suit land on the basis of purchase from defendants No. 39, 40 and 52. The learned trial Court found that defendant No. 52 was not the owner of the land alone and he had inherited the land alongwith his brother, namely, Ananta Sarma and Phani Sarma who were defendants No. 16 and 17 in the suit against whom the suit proceeded ex-parte. Defendant No. 52 (Madan Sarma) was examined as PW6 whereas defendant No. 39 (Jogendra Kalita) was examined as PW3. Jogendra Kalita and Madan Sarma being vendors stated on oath as witnesses of the plaintiff and admitted to have sold their land in favour of the plaintiff. But merely because defendant Nos. 15 & 16 did not join th